Even with Federal Guidelines, Spousal Support Amounts Are Never Certain

by familyllb on November 17, 2011

Even with Federal Guidelines, Spousal Support Amounts Are Never Certain

The obligation to pay spousal support can arise through several means, including negotiation between the parting spouses, or by way of a court order. Either way, the amount and duration of support is dictated by a wide array of factors, and will vary from case to case.

As a means of bringing some consistency to the complex process of determining what support is appropriate, in Canada the federal Spousal Support Advisory Guidelines (the “Guidelines”) were formally issued in 2008. These Guidelines were drafted by two respected Law Professors with the endorsement of the Department of Justice Canada, after consultation with stakeholders in the family law field.

However, it’s important to know that the Guidelines are not officially “law”. Instead, they are merely informal guides that have only an advisory purpose; i.e. they provide suggestions as to the appropriate range of spousal support amounts and duration, taking into various criteria into consideration. The Executive Summary for the Guidelines articulates its objective:

“The Spousal Support Advisory Guidelines were developed to bring more certainty and predictability to the determination of spousal support under the federal Divorce Act. …The Guidelines are not legally binding and their adoption and use will be voluntary. They are intended as a practical tool to assist spouses, lawyers, mediators and judges in determining the amount and duration of spousal support in typical cases.”

To this end, the Guidelines impose a standardized set of rules and tables to assist in determining the appropriate level and duration of support in myriad scenarios. The objective is to bring some much-needed certainty and consistency to the issue spousal support entitlements across Canada.

Nonetheless – and despite the Guideline’s existence and widespread use by those in the family law field – court-imposed spousal support orders can still be uneven across the country, sometimes defying traditional logic and the consistency that is supposed to form the underpinnings of the Guidelines in the first place. This is sometimes the case even where a judge expressly refers to having used the Guidelines as a tool for making the proper support award.

Looking at Ontario, for example, there are instances in which courts have overtly purported to apply the Guidelines, but then have made awards that do not actually fit within them. For example, in the Ontario Court of Appeal decision in Rioux v. Rioux, the parties had a 21-year marriage. The husband earned about $100,000 a year, while the wife (who was 48 years old) earned only about $16,000. At trial, the judge ordered the husband to pay the wife only about $900 per month. The wife appealed, but asked for only $1,500, which was a modest amount in the circumstances and not in step with the Guidelines. The appeal court found this amount to be “reasonable” and “well within the spousal support guidelines”; in reality, this was simply an inaccurate conclusion on the court’s part, no matter how the Guidelines formula was applied. Moreover, the duration of the support awarded was equally puzzling: the Guidelines dictated indefinite support from the husband in these circumstances, and yet the Court awarded the wife only five years’ worth (subject to a possible review), citing the fact that the wife was “relatively young” and was working on gaining self-sufficiency.

In another Court of Appeal decision called Catsoudas v. Catsoudas, the appeal court was asked to review the trial judge’s order – which was given without any articulated reasons – to the effect that the husband should pay $1,000 per month to the wife. It was a 22-year traditional marriage, with the husband earning $110,000 and the wife earning $42,000. The husband had appealed the trial award, on the basis that the $1,000 was “overly generous” in light of the other payments he had to make as part of the divorce, for equalization and child support (these amounted to $1,300, which was also less than he should have been paying under the circumstances). The Court of Appeal upheld the original award, stating that it was not “outside the range of what would be appropriate, particularly taking account of the spousal support guidelines”. In fact, even taking his other support obligations into account, the stipulated $1,000 was below the low end of the Guidelines’ range. Rather, in these circumstances involving a long-term marriage – and in light of the Guidelines’ formula – the situation called for support in the mid-to-high-end range of closer to $2,000 per month.

Certainly, there are some out-of-the-ordinary cases and aberrant outcomes. Even court-ordered spousal support awards can vary broadly across the country, since they still involve an element of subjective assessment and consideration of the fact that every family law case is unique. Therefore – and even with the theoretical certainty of the Spousal Support Guidelines as a tool — separating and divorcing spouses should ensure they each get competent legal advice whenever spousal support becomes an issue.